Olic v. Lizarraga

Filing 22

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/28/2019 RECOMMENDING petitioner's 1 application for a writ of habeas corpus be denied. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MILORAD OLIC,

12
13
14

No. 2:17-cv-00155 JAM KJN
Petitioner,

v.

FINDINGS & RECOMMENDATIONS

JOE A. LIZARRAGA,

15

Respondent.

16
17
18

I. Introduction
Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of

19

habeas corpus pursuant to 28 U.S.C. § 2254. In 2011, petitioner was convicted of attempted

20

murder and was sentenced to thirteen years-to-life in state prison. Petitioner claims that during

21

his incarceration, correctional authorities violated his constitutional rights by forcing him to leave

22

his housing in the administrative segregation unit. After careful review of the record, this court

23

concludes that the petition should be denied.

24

II. Procedural Background

25

On April 7, 2011, petitioner was sentenced to thirteen years-to-life in prison after a jury

26

found him guilty of attempted murder (Cal. Pen. Code, § 664(a)/187(a)) - including

27

enhancements for personally inflicting great bodily injury on a person over 70 (Cal. Pen. Code,

28

§ 12022.7(c)) and use of a deadly or dangerous weapon (Cal. Pen. Code, § 12022(b)(1)) – and
1

1

inflicting injury on an elder adult (Cal. Pen., § 368(b)(1)). (ECF No. 20 at 10-16.) Petitioner

2

unsuccessfully appealed the conviction to the California Court of Appeal, Fourth Appellate

3

District-Division Three. (ECF No. 1 at 2.) Thereafter, the California Supreme Court denied his

4

petition for review. (ECF No. 1 at 2.) A petition for writ of habeas corpus pertaining to that

5

conviction is reportedly pending before the United States District Court for the Central District of

6

California. (ECF No. 1 at 2-3.)

7

Following disciplinary proceedings in state prison, petitioner filed a petition for writ of

8

habeas corpus with the California Supreme Court on July 23, 2015. (ECF No. 20 at 18-24.) The

9

petition was summarily denied on October 28, 2015. (ECF No. 20 at 42-43.)

10

Petitioner filed the instant petition on January 23, 2017. (ECF No. 1.) Respondent filed a

11

motion to dismiss on May 9, 2017, and Petitioner filed objections June 12, 2017. (ECF Nos. 15

12

& 16.)

13

The undersigned issued findings and recommendations on October 5, 2017,

14

recommending the motion be denied and that respondent file an answer to the petition. (ECF no.

15

18.) On December 20, 2017, the district judge adopted the findings in full and ordered

16

respondent to file an answer to the petition within thirty days. (ECF No. 19.)

17

On January 19, 2018, respondent filed an answer. (ECF No. 20.) On February 12, 2018,

18

petitioner filed his traverse. (ECF No. 21.)

19

III. Brief Factual Summary

20

Petitioner is serving an indeterminate sentence of thirteen years-to-life following a

21

conviction for attempted murder. While incarcerated, petitioner was housed in the administrative

22

segregation unit at Mule Creek State Prison. When petitioner was advised in November 2014

23

that, pursuant to a decision of the Institution Classification Committee (ICC), he was to be

24

released to Facility A, he refused to comply with a correctional officer’s order to re-house

25

pursuant to the ICC decision.

26

Petitioner’s refusal resulted in disciplinary proceedings wherein he was found guilty of

27

obstructing a peace officer (refusing assigned housing) in violation of Title 15 California Code of

28

Regulations §3005(c) and assessed the loss of ninety days behavioral credits. Petitioner
2

1

exhausted his administrative remedies by appealing the decision at each available level.

2

IV. Standards for a Writ of Habeas Corpus

3

An application for a writ of habeas corpus by a person in custody under a judgment of a

4

state court can be granted only for violations of the Constitution or laws of the United States. 28

5

U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

6

application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502

7

U.S. 62, 67-68 (1991).

8
9
10
11
12
13
14
15
16
17
18

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

19

holdings of the United States Supreme Court at the time of the last reasoned state court decision.

20

Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct.

21

38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v.

22

Taylor, 529 U.S. 362, 412 (2000)). Circuit court precedent “may be persuasive in determining

23

what law is clearly established and whether a state court applied that law unreasonably.” Stanley,

24

633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit

25

precedent may not be “used to refine or sharpen a general principle of Supreme Court

26

jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall

27

v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per

28

curiam)). Nor may it be used to “determine whether a particular rule of law is so widely accepted
3

1

among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as

2

correct.” Id. Further, where courts of appeals have diverged in their treatment of an issue, it

3

cannot be said that there is “clearly established Federal law” governing that issue. Carey v.

4

Musladin, 549 U.S. 70, 77 (2006).

5

A state court decision is “contrary to” clearly established federal law if it applies a rule

6

contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

7

precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).

8

Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the

9

writ if the state court identifies the correct governing legal principle from the Supreme Court’s

10

decisions, but unreasonably applies that principle to the facts of the prisoner’s case.1 Lockyer v.

11

Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 529 U.S. at 413; Chia v. Cambra, 360 F.3d

12

997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply

13

because that court concludes in its independent judgment that the relevant state-court decision

14

applied clearly established federal law erroneously or incorrectly. Rather, that application must

15

also be unreasonable.” Williams v. Taylor, 529 U.S. at 411. See also Schriro v. Landrigan, 550

16

U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its

17

‘independent review of the legal question,’ is left with a ‘“firm conviction”’ that the state court

18

was ‘“erroneous”’”). “A state court’s determination that a claim lacks merit precludes federal

19

habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s

20

decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541

21

U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal

22

court, a state prisoner must show that the state court’s ruling on the claim being presented in

23

federal court was so lacking in justification that there was an error well understood and

24

comprehended in existing law beyond any possibility for fair-minded disagreement.” Richter,

25

562 U.S. at 103.

26

1

27
28

Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
4

1

If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

2

court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

3

527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

4

(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of

5

§ 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by

6

considering de novo the constitutional issues raised”).

7

The court looks to the last reasoned state court decision as the basis for the state court

8

judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

9

If the last reasoned state court decision adopts or substantially incorporates the reasoning from a

10

previous state court decision, this court may consider both decisions to ascertain the reasoning of

11

the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a

12

federal claim has been presented to a state court and the state court has denied relief, it may be

13

presumed that the state court adjudicated the claim on the merits in the absence of any indication

14

or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption

15

may be overcome by a showing “there is reason to think some other explanation for the state

16

court’s decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803

17

(1991)). Similarly, when a state court decision on petitioner’s claims rejects some claims but

18

does not expressly address a federal claim, a federal habeas court must presume, subject to

19

rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289,

20

(2013) (citing Richter, 562 U.S. at 98). If a state court fails to adjudicate a component of the

21

petitioner’s federal claim, the component is reviewed de novo in federal court. Wiggins v. Smith,

22

539 U.S. 510, 534 (2003).

23

Where the state court reaches a decision on the merits but provides no reasoning to

24

support its conclusion, a federal habeas court independently reviews the record to determine

25

whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

26

Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

27

review of the constitutional issue, but rather, the only method by which we can determine whether

28

a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no
5

1

reasoned decision is available, the habeas petitioner still has the burden of “showing there was no

2

reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.

3

A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

4

Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze

5

just what the state court did when it issued a summary denial, the federal court must review the

6

state court record to determine whether there was any “reasonable basis for the state court to deny

7

relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories . . . could

8

have supported the state court’s decision; and then it must ask whether it is possible fairminded

9

jurists could disagree that those arguments or theories are inconsistent with the holding in a prior

10

decision of [the Supreme] Court.” Id. at 101. The petitioner bears “the burden to demonstrate

11

that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d

12

925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).
When it is clear, however, that a state court has not reached the merits of a petitioner’s

13
14

claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

15

habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462

16

F.3d 1099, 1109 (9th Cir. 2006).

17

V. Petitioner’s Claim

18

A. The Prison Disciplinary Proceedings

19

Petitioner claims that his constitutional rights pursuant to the Eighth Amendment were

20

violated when he was found guilty at a prison disciplinary hearing “because he has a right to

21

voluntary stay in AdSeg” pursuant to Title 15 California Code of Regulations §§ 3341.5 and

22

3269.1. (ECF No. 1 at 7.) More particularly, he contends “inmates can stay voluntary[ily] in

23

AdSeg,” that “refusing to leave AdSeg can not be interpreted as refusing housing,” and that

24

“safety concerns must be addressed.” (ECF No. 1 at 9-10.) He requests this court grant his

25

petition, “declare the rights of parties,” reverse the finding of guilt, restore the loss of behavioral

26

credits, and “expunge all references to the disciplinary charge from [his] central file.” (ECF No.

27

1 at 10-11.)

28

////
6

1

Respondent counters that this court lacks jurisdiction to adjudicate petitioner’s claim, and

2

alternatively, interpreting petitioner’s claim to be one challenging the sufficiency of the evidence,

3

that the state court’s denial of his habeas petition was not unreasonable. (ECF No. 20 at 4-8.)

4

Jurisdictional Standards in Habeas Matters

5

Federal law provides “two main avenues to relief on complaints related to state

6
imprisonment: a petition for habeas corpus (28 U.S.C. § 2254) and a civil rights complaint (42
7
8

U.S.C. § 1983). Muhammad v. Close, 540 U.S. 749, 750 (2004).

9

In Preiser v. Rodriguez, 411 U.S. 475, 500 (1973), the United States Supreme Court held

10

that “when a state prisoner is challenging the very fact or duration of his physical imprisonment,

11

and the relief he seeks is a determination that he is entitled to immediate or a speedier relief from

12

that imprisonment, his sole federal remedy is a writ of habeas corpus.” With respect to prison

13

disciplinary and administrative proceedings, a constitutional claim concerning the application of

14
15
16

rules administered by a prison or penal administrator challenging the duration of a sentence
presents a cognizable claim of custody pursuant to 28 U.S.C. § 2254. See, e.g., Superintendent

17

v. Hill, 472 U.S. 445, 454 (1985) (determining a procedural due process claim concerning loss of

18

time credits resulting from disciplinary procedures and findings).

19
20
21

In 2016, the Ninth Circuit Court of Appeals considered the issue of whether a habeas
corpus petition was the proper vehicle to challenge a conviction arising from a disciplinary
proceeding where that conviction would not necessarily impact the fact or duration of an inmate’s

22
23

confinement. It determined that where success on the merits of a petition challenging the result of

24

a disciplinary proceeding would not necessarily impact the fact or duration of confinement, a

25

petitioner’s claim would not fall within “the core of habeas corpus,” meaning the claim could not

26

properly be brought in a habeas corpus action. Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir.

27

2016).

28
7

1
2
3

More specifically, in Nettles, a prisoner serving a life sentence with the possibility of
parole was found guilty of a disciplinary violation and, as a result, had thirty days of good
conduct credits revoked. Nettles, 830 F.3d at 927. The prisoner subsequently filed a habeas

4
petition in federal court seeking restoration of the loss of credits and expungement of the rules
5
6

violation report that led to the disciplinary finding. Id. The district court dismissed the petition,

7

holding that the prisoner could not prove that expungement of the rules violation report and

8

restoration of lost credits were likely to accelerate his eligibility for parole. Id.

9
10
11

The prisoner appealed, and on rehearing en banc, the Ninth Circuit held that the district
court lacked jurisdiction over the prisoner’s claim because success on the merits “would not
necessarily lead to immediate or speedier release because the expungement of the challenged

12
13
14

disciplinary violation would not necessarily lead to a grant of parole.” Id. at 934-35. The Ninth
Circuit explained that, under California law, the parole board can “deny parole ‘on the basis of

15

any of the grounds presently available to it....’” Id. at 935. Although a disciplinary violation is

16

relevant to whether a prisoner is suitable for parole, “the presence of a disciplinary infraction does

17

not compel the denial of parole, nor does an absence of an infraction compel the grant of parole.”

18

Id. Accordingly, the Ninth Circuit held that the prisoner’s challenge to the disciplinary finding

19

did not fall within “the core of habeas.” Id.

20
21

Here, like the petitioner in Nettles, petitioner seeks to set aside a disciplinary rule

22

violation resulting in a ninety-day loss of credit. However, even if petitioner obtains the relief he

23

seeks, petitioner would not be entitled to immediate release from prison. Certainly, the disputed

24

disciplinary finding may affect the future assessment of petitioner’s parole suitability, but the

25

existence of the rule violation will not compel a determination that petitioner is unsuitable for

26
27

parole, nor will its expungement entitle petitioner to a grant of parole. Therefore, petitioner’s
claim does not lie at “the core of habeas corpus.” And, as a result, this court lacks jurisdiction to

28
8

1

adjudicate the pending petition. See, e.g., Rouser v. Sullivan, 2019 WL 1934483 (E.D. Cal. May

2

1, 2019) (same).

3
4

In his traverse, petitioner contends Nettles does not apply because “Nettles is American
citizen” and does not “face deportation,” and because petitioner is “deportable” he does not

5
6

present a danger to the community, that danger being the “reason for [the parole] board’s

7

existence.” Petitioner concludes that “[t]here is not theoretical possibility that [he] can remain in

8

the United States” even if he were released by the parole board. (ECF No. 21 at 1-2.)

9
10
11

Under California law, “the paramount consideration for both the Board and the Governor”
in determining parole suitability is “whether the inmate currently poses a threat to public safety
and thus may not be released on parole.” In re Lawrence, 44 Cal.4th 1181, 1212 (2008). Title 15

12
13
14

California Code of Regulations § 2402 concerns the determination of suitability for parole.
Included is a list of information that shall be considered by the parole board panel, as well as

15

circumstances tending to show unsuitability and suitability for parole. (15 Cal. Code Regs.

16

§ 2402(b)-(d).) Specifically, § 2402(b) allows for consideration of “any other information which

17

bears on the prisoner’s suitability for release” and (d)(8) reads: “Understanding and Plans for

18
19

Future. The prisoner has made realistic plans for release or has developed marketable skills that
can be put to use upon release.” Focusing on deportation as it relates to parole, the lack of a

20
21

release plan can result in a finding of unsuitability. See, e.g., Ibarra v. Sisto, 2009 WL 1911628

22

at *8 (E.D. Cal. July 1, 2009). More significantly to petitioner’s position here, however, is the

23

fact that any finding regarding dangerousness in light of deportation is entirely speculative. Said

24

another way, even assuming petitioner’s contention that he has been ordered deported following

25

denial of an asylum petition, the fact of deportation alone does not mean petitioner cannot be

26

found to pose a threat to public safety. Petitioner cannot prove the expungement of the rules

27
violation report and restoration of behavioral credits are likely to accelerate his eligibility for
28
9

1

parole. Nettles, 830 F.3d at 927. In sum, Nettles applies regardless of petitioner’s deportation

2

status.

3
4

To conclude, the undersigned finds this court lacks jurisdiction to adjudicate petitioner’s
claim.2 Therefore, it is recommended the claim be DENIED.

5
Conversion of the Habeas Petition

6

Finally, in Nettles, the Ninth Circuit held that a district court has the discretion to construe

7
8

a habeas petition as a civil rights action under 42 U.S.C. § 1983. Nettles, 830 F.3d at 936.

9

However, recharacterization is appropriate only if it is “amenable to conversion on its face,

10

meaning that it names the correct defendants and seeks the correct relief,” and only after the

11

petitioner is warned of the consequences of conversion and is provided an opportunity to

12
13

withdraw or amend the petition. Id.
Here, the undersigned does not find recharacterization to be appropriate. As an initial

14
15

matter, prison civil rights actions are subject to different requirements than are federal habeas

16

proceedings, including higher filing fees. Moreover, petitioner has not necessarily named the

17

proper defendants and the relief he seeks here may not necessarily be the same relief he might

18

seek in a civil rights action. Accordingly, this court should not exercise its discretion to

19
recharacterize the action.
20
21

VI. Conclusion
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of

22
23

habeas corpus be denied.

24

These findings and recommendations are submitted to the United States District Judge

25

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

26

after being served with these findings and recommendations, any party may file written

27
28

Because the court lacks jurisdiction, the undersigned need not address respondent’s alternate
argument.
10
2

1

objections with the court and serve a copy on all parties. Such a document should be captioned

2

“Objections to Magistrate Judge’s Findings and Recommendations.”

3

objections, he shall also address whether a certificate of appealability should issue and, if so, why

4

and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if

5

the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

6

§ 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after

7

service of the objections. The parties are advised that failure to file objections within the

8

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

9

F.2d 1153 (9th Cir. 1991).

10

Dated: May 28, 2019

11
12
Olic.0155.157

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11

If petitioner files